Tuesday, Jan 17 2012
• 10 a.m. (ET)

Citizens United, Super PACs and the 2012 Presidential Race

Citizens United and super PACs: What unrestricted corporate, union and special-interest campaign spending means for the 2012 presidential race.

Guests

Jan Baran
head of the election law group at Wiley Rein LLP; former general counsel to the Republican National Committee; author, "The Election Law Primer for Corporations."

Trevor Potter
former chair of the Federal Election Commission; president and general counsel of The Campaign Legal Center; and head of the political activity practice at Caplin & Drysdale.

Dave Levinthal
political influence reporter, Politico.

Bob Edgar
president, Common Cause; former congressman, Democrat-Pennsylvania (1975-1987); former general secretary, National Council of Churches.

Transcript

10:06:56

MS. DIANE REHMThanks for joining us. I'm Diane Rehm. Huge amounts of money are being spent by super PACs in support of specific candidates. We talk about how super PACs could affect election outcomes and whether they're corrupting influence on American politics. Joining me in the studio: Trevor Potter of The Campaign Legal Center, former chair of the Federal Election Commission, Dave Levinthal of Politico, and election law specialist Jan Baran, formerly with the Republican National Committee. Good morning to all of you.

10:07:43

MR. DAVE LEVINTHALGood morning.

10:07:43

MR. TREVOR POTTERGood morning, Diane.

10:07:43

MR. JAN BARANGood morning, Diane.

10:07:44

REHMDave Levinthal, if I could start with you, define super PACs for us.

10:07:51

LEVINTHALA super PAC, which is technically known as an independent expenditure-only committee, is really a new breed of political committee that has not existed, at least in a presidential election cycle prior to the one that we're currently in. They can raise as much money as they want. They can spend as much money as they want, and they can do so whenever they want, saying effectively whatever they want.

10:08:15

LEVINTHALAnd it's really caused quite a furor in this presidential election cycle because, in some cases, they've been spending more than the candidates themselves have been spending, particularly during some very critical junctures within the election cycle, such as the Iowa caucuses, the New Hampshire primaries.

10:08:34

REHMTrevor Potter, give us some of the background on Citizens United.

10:08:40

POTTERWell, Citizens United was the Supreme Court case in which the court said that corporations -- and it's now interpreted as unions as well -- could spend money directly to urge the election or defeat of federal candidates as long -- and, actually, corporations at any state or local level as well. The court overturned a whole series of laws across the country.

10:09:04

REHMAnd any limits?

10:09:06

LEVINTHALAnd what the court said was, as long as they were spending the money independently of candidates -- not giving it to candidates -- they had no limits at all on what they could spend.

10:09:18

REHMJan Baran, what are some of the biggest super PACs that have emerged in this year's election?

10:09:28

BARANWell, according to this morning's Washington Post, there is a listing of super PACs that are identified with specific candidates, and it's a certain breed of super PAC. There's a group called Restore Our Future, which supports former Gov. Mitt Romney, Make Us Great Again supporting Gov. Perry, Winning Our Future, which is a pro-Gingrich PAC, and then similar type organizations.

10:09:58

BARANI added up the figures that were in the Post this morning, and according to the Post, these remaining six or so super PACs supporting the candidates, which would include Gov. Huntsman who dropped out on Sunday, spent approximately $20 million for advertising supporting these candidates thus far.

10:10:20

REHMSo you heard Trevor Potter say they can't be in contact with the candidate. How much transparency is there about who's giving to these Super PACs?

10:10:36

BARANWell, one element of a super PAC is that it has to register with the Federal Election Commission, and it has to file regular reports disclosing their contributors and how they're spending their money. There's sort of a duplicate reporting. I mean, first they have to report within 24 hours when they spend money on certain advertising, and then they have to file these other additional disclosure reports.

10:11:00

BARANOne of the complaints in this cycle is that the reporting frequency pursuant to the existing law is essentially a quarterly filing period, which means that the next report is going to be Jan. 31, which also happens to be the date of the Florida primary. And that means that all of the money raised by these super PACs since Oct. 1 have not been disclosed thus far, but will be on Jan. 31. So they will then have to identify every contributor over $200.

10:11:35

REHMTrevor, I know that you were opposed to Citizens United, that decision. What are your concerns?

10:11:43

POTTERWell, one of the concerns is actually what you just touched on, which is I said candidates may not coordinate. You said perfectly, reasonably, may have no contact with the committees. That's actually the problem. The Supreme Court and Citizens United assume that these independent -- these expenditures would be what they called wholly independent of the candidate or a party committee.

10:12:06

POTTERIn fact, the FEC has terrible coordination regulations, which have been thrown out twice in court. But the commission has not yet replaced them, and they allow close contact. What they don't allow is the candidate and the committee to actually talk about the specific content of specific advertising. But they have allowed candidates to fundraise for these supposedly wholly independent committees. Close aides of the candidates, former fundraisers, lawyers, relatives all run the super PAC.

10:12:39

POTTERSo when Jan is reading from the Post about these wholly independent committees that are called the Gingrich super PAC, the Romney super PAC and so forth, we have identified one of the big problems. The court didn't understand that this spending would, in fact, be much closely tied to the candidates than they expected.

10:12:59

REHMDave Levinthal.

10:13:01

LEVINTHALAnd one of the important things to note in all of this is that these super PACs -- many of them are run by former intimates, associates, employees of the candidates, who are now running in the presidential election. So, at the end of the day, they don't really have to sit down at a boardroom table or they don't have to get on a conference call with these candidates to kind of know what's going on inside their brains and what kind of message they would like to put out.

10:13:26

LEVINTHALIn fact, the associates of Winning Our Future, which is a pro-Newt Gingrich super PAC, had told us, hey, well, of course, we know him very well, but we take our cues from him through the media, through his statements that he makes. And it's very easy for us to get a good beat on exactly what Newt Gingrich would like us to do, and then we follow suit and effectively do that.

10:13:47

REHMJan Baran, you say it would be hard to prove that kind of coordination?

10:13:53

BARANWell, I think that we are confusing what the law requires in terms of collaboration versus our suspicion that there must be collaboration because these people who are running these PACs and are funding these PACs are actually supporters of the candidate that they're promoting. And, of course, that's sort of reminiscent of medieval law when we had what was known as taint of the blood, you know, just by your mere relationship with somebody, you must have committed a crime.

10:14:24

BARANWell, we don't do that. And one of the elements of coordination really are the regulations that Trevor referred to. There are some complaints about the regulations. But since the McCain-Feingold law, which was passed in 2002, there are now very detailed, extensive, multi-page, single-spaced regulations about what constitutes coordination, and that includes things such as collaboration with the candidate. Of course, it doesn't include using information that's publicly available. That's not coordination.

10:15:00

BARANIt does constitute coordination if a candidate requests somebody to spend money in this fashion or asks them to do something. The candidate can't go and say, look, I really don't have enough money to do radio in Iowa, and it would be very helpful if you did that. Well, that's coordination. That would be illegal. Also, the people who are involved in these PACs apparently used to be employees. I mean, some of the folks in Romney PAC, for example, were involved in the 2008 election four years ago.

10:15:35

BARANBut, again, the regulations, which, by the way, are largely based on the statute itself, define when somebody is considered too closely tied to a campaign, and having worked for a candidate four years ago does not constitute coordination.

10:15:51

REHMTaint by association, Trevor?

10:15:53

POTTERWell, I mean, the two points that I would make are, one, that coordination regulations -- it's true -- are many pages long, but that's because it takes a lot of volume to create that much Swiss cheese. And there are all sorts of holes in it. But the bigger point I'd like to make is that, yes, there are rules out there. We see all of this cross-pollinization, (sic) what we would call coordination and everything except the legal sense of what the FEC Reg say.

10:16:23

POTTERAnd that means that, I think, fundamentally, the Supreme Court was wrong in thinking that you could have independent spending that was going to be wholly independent of candidates. And that's why it was constitutionally required to be allowed because if it's wholly independent, it can't be corrupting. And we're looking at speech that is not wholly independent and can be corrupting. When someone gives $5 million to Newt Gingrich's PAC, Newt knows exactly who it is.

10:16:52

POTTERThe PAC does what Newt wants and what he's asking people to do, you know, publicly. I think you have a real problem with corruption and the potential for corruption, which is what our laws are designed to avoid.

10:17:04

REHMHow much is -- or do we know how much is coming from individuals, how much is coming from corporations, Dave?

10:17:13

LEVINTHALWe don't have a clear picture of that, and that goes back to the point of the disclosure of the money that is flowing into these super PACs. We have some anecdotal sense of where the money is coming from, a few millionaires or billionaires who certainly have made large dollar donations to these super PACs. But there's a disconnect in terms of the way that you have to report how you spend your money as a super PAC and how you raise your money and collect it.

10:17:40

LEVINTHALFor example, if you go out as a super PAC today in the South Carolina primary, you're going to have to report effectively within 24 hours how much money you've spent on a particular advertisement or communication that you're putting forward. So you have that. However, you're not going to have to report until the end of this month in terms of where you got that money. So, in some cases, you can wait months -- not weeks, not days, but months -- to actually report where you're getting your money from when you have to report within a matter of hours where you're spending that money.

10:18:14

REHMJan Baran.

10:18:16

BARANThat is correct. I think getting to the issue of, you know, how these groups and individuals can operate -- it's been constitutional law for 40 years that individuals and groups, including political parties who have a relationship with candidates, also have a First Amendment right to spend money independently to those candidates.

10:18:38

REHMJan Baran, head of the election law group at Wiley Rein. He's former general counsel to the Republican National Committee.

10:20:06

MR. BRET BAIERSo, Gov. Romney, in the general election, if you're the nominee, you'd like to see super PACs ended?

10:20:10

MR. MITT ROMNEYOh, I would like to get rid of the campaign finance laws that were put in place. McCain-Feingold is a disaster. Get rid of it. Let people make contributions they want to make to campaigns. Let campaigns then take responsibility for their own words and not have this strange situation where we have people out there who support us, who run ads we don't like, we'd like take off the air, we think are outrageous, and yet they're out there supporting us. And, by law, we're not allowed to talk to them.

10:20:37

MR. MITT ROMNEYI haven't spoken with any of the people that are involved with my super PAC in months, and this is outrageous. People -- candidates should have the responsibility and the right to manage the ads that are being run in their behalf. I think this has to change.

10:20:52

REHMWhat do you make of that, Dave Levinthal?

10:20:55

LEVINTHALIt's sort of like saying you're an advocate for peace while your allies are raining bombs upon your enemies heads. It might ring a little bit empty for some folks. But at the same time it's foreshadowing, I think, a potential change, yet again, in campaign finance election law in this country. We've had such a bizarre situation, I suppose, over the past decade, where, literally, every couple of years, there's a new landmark Supreme Court case or McCain-Feingold gets passed or another decision that comes down that further changes the way things used to be.

10:21:29

LEVINTHALYou simply have to go back, not even a decade or two decades, but a few years in the campaign finance landscape in this country. It was markedly different than it is today. And, again, I suspect that two years from now, for having a similar conversation, we'd be talking about very different things then than we are now.

10:21:48

REHMTrevor Potter.

10:21:49

POTTERWell, what the governor was saying is, you know, let's get rid of all these laws. He says, McCain-Feingold, which was only 10 years ago, but, actually, the laws he's referring to have been in place for most of the 20th century, the last century, 100 years, in terms of limiting contributions to candidates. After Watergate, we rewrote all the laws Congress did and established $1,000 limit of contributions. No corporate money, only individuals. What McCain-Feingold did was raise the limit, and it's now $2,500.

10:22:23

POTTERBut as I hear him, what he's saying is let's get rid of all that. Let's allow individuals and apparently corporations, since they're people, to give unlimited amounts to federal candidates, which, to me, is effectively the legalized bribery that we learned about and had a problem with in Watergate.

10:22:42

REHMJan Baran, are you not concerned at all about the large amounts that individuals can give, in effect, making it something of a, I'll give you money, I'll give you money, I'll give you more money, and then you win?

10:23:04

BARANWell, I think that there is an understandable suspicion about that. I want to assure you and our listeners I don't just read The Washington Post. But I am again going to refer to a very interesting column in today's Washington Post written by Richard Cohen, who details how several very wealthy liberal Democrats, who are anti-war, got together and provided approximately $1.5 million in 1968 dollars, which is, you know, several more millions today in terms of purchasing power, to help Gene McCarthy start a campaign.

10:23:44

BARANAnd he points out, I think, correctly that money is necessary to undertake campaigns one way or the other, whether for an underdog or somebody who's ahead. What Gov. Romney has touched on here are really two elements. One is that he, like all candidates, would like to manage all advertising about them in a campaign. But the Supreme Court has said, look, you cannot, and this was attempted in the Watergate reforms by -- it was attempted to prevent anybody from spending money other than candidates and political parties.

10:24:21

BARANAnd the Supreme Court said repeatedly over the next 40 years, look, candidates and parties have a right to raise and spend and speak, but so does everybody else. Every individual, every political party, every PAC, even corporations and unions, if they want to go out and say something, they have a right to do that. It's the First Amendment right.

10:24:42

REHMAt the same time, if these super PACs are run by people intimately involved or with intimate knowledge of that candidate, does that really separate the two?

10:25:01

BARANWell, if they are intimately involved and know what the candidate's plans and projects are and are collaborating with the candidate...

10:25:08

REHMNo, I didn't say collaborate.

10:25:10

BARANI understand. I understand, but I'm making a distinction here, which is an important one because the Supreme Court says, look, just because you are an individual who has wealth and you support a candidate, or you are a political party who obviously supports candidates running under your party's banner, that doesn't eliminate your other First Amendment right to go out and say something on your own. And if you're collaborating, that's a contribution, and that can be limited and regulated and restricted. But if you're saying this on your own, you have that First Amendment right.

10:25:42

REHMTrevor.

10:25:43

POTTERWell, the -- Jan's right, of course. The court said this, saying, if it's wholly independent, then it is not corrupting. If it is, however, corrupting, then it can be limited. And the court said an individual acting totally on their own, as Jan said, or a party committee, is not going to corrupt a candidate or a member of Congress by making a wholly independent expenditure. The point I'm making is these do not look wholly independent.

10:26:10

POTTERTherefore, the safe harbor, the court said, the reason that this is a First Amendment right that cannot be touched on is no longer here in these circumstances because what you have is spending that, in many ways, comes from associates of the candidates. The PACs say we're getting our instructions from the candidate by listening to the press conferences, and you therefore have the potential for corruption, which means you're no longer in this First Amendment safe harbor that the court identified for really different circumstances than we're looking at today.

10:26:42

REHMDave, what kind of influence do you think the super PACs had in Iowa and New Hampshire?

10:26:51

LEVINTHALIn Iowa, they certainly had a demonstrable effect, a major effect because Restore Our Future, which is a pro-Mitt Romney super PAC, run again by some of his former associates, had the ability to go up with several million dollars worth of negative advertising directed at Newt Gingrich. Now, in mid-December, Newt Gingrich was riding high. He was at the top of national polls.

10:27:15

LEVINTHALHe was doing extremely well in Iowa polls. And if you put good money on Newt Gingrich at that point in time to potentially win the Republican nomination, you wouldn't be throwing that money away. But then what happened? The super PAC came in. It started targeting its firepower directly at Newt Gingrich and Newt Gingrich's poll numbers. Well, we all know what happened there.

10:27:36

LEVINTHALSo that's probably the strongest example so far of the presidential race, in the presidential race. Race super PAC had a very major effect in the way, in a short period of time in terms of the outcome of an election or a primary.

10:27:49

REHMAnd Jan Baran went back to 1968 and the fact that wealthy individuals helped Eugene McCarthy get into the race. Are Democrats, as well as Republicans and Tea Party candidates, benefiting from these rules under Citizens United?

10:28:15

LEVINTHALMake no mistake that Republicans and Democrats are both taking advantage of this new system that's been put in place. This is not unique to Republicans. This is not unique to Mitt Romney or Newt Gingrich. Barack Obama, for example, has a super PAC that is very supportive of him. It's run by two of his former White House staffers, Bill Burton and Sean Sweeney. And they're in the midst of raising what they hope to be millions, if not tens of millions, of dollars of money. They've gone up with some limited advertising and independent expenditures.

10:28:46

LEVINTHALSo far, it's actually been targeted at Mitt Romney, and you can expect that as things go along and the general election nears, that they are going to be incredibly active. It's also important to note, too, that we're not just talking about presidential candidates here. There are dozens upon dozens of super PACs that are going to, in some cases, be supporting or opposing congressional candidates.

10:29:08

LEVINTHALWe see this as sort of a prototype of this working out in Massachusetts, and it's an interesting situation there where the two Senate candidates, Elizabeth Warren and Scott Brown, Democrat and Republican, they both have super PACs that are supportive or in opposition to them. And they've even called for a sort of, you know, détente, an armistice if you will, which is very interesting, considering that these super PACs are supposed to be completely independent of them.

10:29:37

REHMTrevor, what do you think are the chances that Citizens United could be reversed by a constitutional amendment?

10:29:49

POTTERWell, I think the chances are greater that it can be reversed or scaled back, reconsidered by the Supreme Court. They even have a case before them now out of Montana where the court says -- they or the state Supreme Court -- that its situation is different. Its PAC burdens are lower. It has shown actual corruption, and therefore it should be allowed to regulate this independent spending.

10:30:10

POTTERThe constitutional approach, I think, is a very difficult one. Anyone who's looked at it -- we -- you know, all of us have enormous respect for the First Amendment. We may disagree on what it requires or whether it allows unlimited corporate speech, but I think we would be very leery of amending the First Amendment. And having looked at attempts to do that, I can tell you it is very hard to do so in a narrowly targeted way that only overturns Citizens United and doesn't change a broader approach to speech in this country.

10:30:48

REHMJan Baran, what do you think the chances are the Supreme Court will overturn this decision?

10:30:56

BARANWell, I think it's not likely, but it's certainly not out of the question. I mean, the Supreme Court has reversed, I think, 20 or 26 cases over the last 30 years in some fashion. Of course, the Citizens United case was itself a overturning of two other Supreme Court cases in the preceding 20 years. So it's not out of the question. I don't think that it's going to be likely for any of the reasons we're discussing today -- you know, the distinctions between whether spending is wholly independent or whether it's, you know, genuinely independent.

10:31:34

BARANSomething that's not independent is going to be a contribution. The Supreme Court has said very firmly that if government wants to limit contributions, it can do so. So there will be independent spending. After Citizens United unit is reversed, just as it was, a lot of independent spending before Citizens United.

10:31:56

REHMTrevor, I know you've worked with comedian Stephen Colbert on his super PAC. What's the statement that Stephen Colbert is trying to make?

10:32:11

POTTERYou know, I'm always very careful, since he's a client, to let him speak for himself. Let me tell you what...

10:32:15

REHMWe'd be delighted.

10:32:17

POTTERLet me tell you what I take from, you know, the show, though, and my conversations with him. And that is this is an opportunity for him to demonstrate to the country at large some of the peculiarities that we're discussing this morning. You have a great audience, but he has a very different audience of people who are learning about super PACs for the first time. We know that, particularly, the younger generation is less likely to be reading the daily newspaper and get their news from other forms.

10:32:50

POTTERAnd I think what his conversation does, his demonstration by having a super PAC, is to illustrate the very issues we're talking about: the degree to which the current regulations allow coordination, the fact that you can have unlimited contributions from individuals and candidates, the fact that you don't always have disclosure, that you can hide disclosure behind corporate forms. Those are issues that I think are relevant to this discussion, and he's able to demonstrate them.

10:33:19

REHMSo how did he do it?

10:33:22

POTTERWell, he did them by creating one of these super PACs, which -- I mean, we talked about and Jan noted the problems with the current disclosure system. It's an old paper-based system. It doesn't take into account the speed in which things now happen. And his PAC is one of the many PACs that will disclose six months of spending at the end of January, after he's been running ads. And now, as you know, it's Jon Stewart's PAC after Jon Stewart has been running ads in South Carolina.

10:33:52

POTTERSo there is a disclosure problem that that illustrates, but he did it by creating a PAC and going through the process. So the viewers could be on the inside, watching how the sausage is made.

10:34:06

REHMTrevor Potter, former chair of the Federal Election Commission. And you're listening to "The Diane Rehm Show." Dave Levinthal, as one of those younger people yourself, I'm sure you've been watching this unfold.

10:34:22

LEVINTHALIt's sort of a reality show for election law, which doesn't sound terribly sexy, but, in fact, has served a great purpose in educating so many people, as Trevor said, about the particulars of what's going on here. And it's very important in the sense that it has a great amount of effect on the way that we are going to choose a president, or that we are certainly going to choose members of Congress.

10:34:48

LEVINTHALSo, hey, it's high comedy. It's great satire. It's a -- it's really just a wonderful way for all of these issues to get to the forefront. We could write about it all day long and not reach the same audience.

10:35:00

REHMAnd joining us now from San Antonio is former Democratic Congressman Bob Edgar. He's president of Common Cause. Good morning to you, sir.

10:35:15

MR. BOB EDGARGood morning, Diane, and thanks for taking the time to raise this issue with your listeners.

10:35:20

REHMWell, I'm delighted to do it. I know that Common Cause is launching your Amend2012 campaign today. What's the goal? What's your strategy?

10:35:35

EDGARWell, as you know, this is the second anniversary of Citizens United. And we wouldn't have been talking about any of the issues that your guests have been talking about had it not been for a very narrow decision of the Supreme Court, where they voted 5-4 to say that corporations are people, that money is speech. And by a 5-4 vote, they gave corporations the opportunity, as well as labor unions, to dip into their corporate treasuries and spend those in any way they want on these independent expenditures.

10:36:05

EDGARSuper PACs would not have existed if it were not for Citizens United. So on the second anniversary of Citizens United, and in this 2012 presidential year, Common Cause and its supporters all across the country have decided to push back on Citizens United. It's very difficult, as your guests have said. But the first thing that we're going to do is launch today something entitled Amend2012.

10:36:33

EDGARWe're working with a whole coalition of organizations that are trying to pass resolutions in city councils and have different government organizations try to initiate a conversation about Citizens United and push from the bottom up to make sure that, over the course of the next couple of years, citizens themselves, average ordinary people, can instruct their legislators that they want to change and amend the Constitution so that people understand that money is not speech, that money can stifle speech, and that corporations are important, but they're not people.

10:37:12

EDGARAnd we think that, in this presidential year, it's going to be a corrosive year because of not only the money that candidates are going to raise and spend, but what these super PACs are going to do, and it's going to impact on both Democrats and Republicans. And our fear is that if we allow the current Citizens United decision to continue, we're going to have a nation that is of and by and for corporations themselves.

10:37:37

REHMAll right. All right. We'll take a short break here. When we come back, we'll hear from our listeners.

10:40:04

REHMAll right. And I want to invite you all to join us, 800-433-8850. Send us your email to drshow@wamu.org. Join us on Facebook or Twitter. On the line with us is Bob Edgar, former Democratic Congressman, now president of Common Cause. We were talking about his efforts to amend the Citizens United decision by going to state and local legislatures.

10:40:49

REHMYou've heard, Congressman Edgar, Trevor Potter say that he feels that a constitutional amendment would be very difficult to achieve, that, rather a decision from the Supreme Court, either limiting or overturning Citizens United would be the better preferable way to go. How do you feel about that?

10:41:19

EDGARWell, Diane, Trevor and I agree on lots of these issues, and I agree that it's going to be hard. But that shouldn't stop us from trying to fine-tune the Constitution. Our Founding Fathers did not sit around saying, oh, yes, money is speech. And if they had an opportunity to speak today, they'd probably say money is stifling speech.

10:41:41

EDGARWhat our initiative does is create a voter instruction process where, from the bottom up, average ordinary citizens can put pressure on their elected officials, on their congressmen, on their senators, and that we can work on making sure that our constitution is relevant for this century and not simply interpreted by a conservative core. And, remember, the court's decision was just a narrow one-person decision. It wasn't a landslide decision by any means.

10:42:12

EDGARAnd this year, this presidential year, people are going to be offended on all sides -- conservatives, moderates and liberals -- to see how these independent expenditures are going to taint and change the outcome of elections, not only in terms of impacting on incumbents but also impacting on challengers.

10:42:26

REHMAll right.

10:42:31

EDGARAnd I don't think we have the government we need for this century unless we're willing to do the hard work. And this voter instruction process, again, from the bottom up, will be launched in about an hour by Bob Reich, who is the chair of the board at Common Cause, former Labor secretary. And a whole coalition of friends and people and board members are excited about the opportunity to use this presidential year as a teaching opportunity.

10:43:02

EDGARYes, it may take more than a year to get a constitutional amendment. But why not use this year, where we've already seen in the Romney-Gingrich debate over super PACs, an opportunity to educate the American public that this is the most dangerous moment in American history for Democracy...

10:43:20

REHMAll right. And that was the voice of former Democratic Congressman Bob Edgar. He is currently the president of Common Cause. Thanks so much for joining us, sir. And now, we're going to open the phones, 800-433-8850. To William in Baltimore, Md., good morning.

10:43:49

WILLIAMGood morning. Just a couple of things. I'm old enough to remember Watergate. And the interesting thing was with Stephen Colbert, how simple it was to form a super PAC and the reality of the candidate actually coordinating with the super PAC. Even though that they may not meet face to face and have direct conversations, the conversations can still be maintained through public speaking, appearances or whatever.

10:44:31

WILLIAMAnd if they can find, you know, the super PAC happens to listen or be there or whatever and in that way, it is scary that they can coordinate that simply. Another thing is with Watergate. It is a shame that everything that had been established after Watergate is basically being thrown out the window.

10:44:53

REHMAll right. Trevor.

10:44:55

POTTERWell, I think the fundamental issue that came out of Watergate was corruption, the ability to basically buy government action, legislation, put a candidate in your debt. You know, one of the famous things in Watergate was a $1 million contribution by one individual to Nixon's re-election campaign, which was regarded as, in a democracy to a president, a mistake. That gave us a public funding system which was a voluntary system.

10:45:23

POTTERBut people participated in that all the way through to the last election cycle, in the presidential election when it was Barack Obama who was the first national candidate to turn his back on that system. So what I think we need to do is to recognize that, you know, we have -- some people have short memories. Other people weren't born when Watergate was here. We need to remember that there is a real potential for corruption with these huge contributions.

10:45:51

POTTERAnd now we have huge contributions to a candidate linked, super PACs from corporations as well, who want something out of government and from Congress. And that's something the Supreme Court has said we can limit, contributions that lead to corruption. So I think we can take another look at this. What Common Cause is doing and putting pressure on Congress, opens the discussion that I think we really need to have over the next year.

10:46:16

REHMAnd here's an email from Christopher in Arlington, Texas, who says, "If courts see campaign contributions as a form of free speech and voting is also a form of free speech, then the person who contributes $5 million is obviously being granted a much greater capacity to exercise his or her free speech while I, a poor graduate student, am left with only my literal speech and my vote." He ends by saying, "It's a farce." Jan.

10:47:02

BARANWell, there are many ways to exercise speech, individually and also collectively. I mean, President Obama raised $750 million in limited contributions, much of it in small amounts that were collected over the Internet. Speech is exercised in many forms. It is true that those people who have wealth are able to spend that wealth more easily. They don't have to go through the exercise of collecting additional money from others. But we have seen many other organizations equal that type of individual spending.

10:47:37

REHMDave.

10:47:39

LEVINTHALOne of the major arguments from folks who want to create a public financing system is that the spectrum is sort of out of balance, if you will, and that there should be a greater emphasis on promoting or fostering small donations, limited donations, donations that are coming from everyone instead of a select few. Although the courts and just politics, as they've been for many years, have, largely to this day, rejected that at the federal level, although we do see some examples at the state level.

10:48:14

LEVINTHALArizona would be one state where this has taken place. There are other states that are constantly looking at it where they effectively want to create a small donor or a public donation system. And I believe New York, if I'm correct, is the latest large state that is looking at this very topic.

10:48:30

REHMAll right. To Fayette, Ala. Good morning, Michael.

10:48:34

MICHAELGood morning. Before I ask my question or two, I have got to apologize to Diane Rehm. Two months ago, I complained about the highbrow image that public radio was given by some states -- several around the country who depended on white European classical music from before 1900 and (unintelligible).

10:48:58

REHMMichael.

10:48:59

MICHAELAnd I really do apologize (unintelligible).

10:49:00

REHMOK. Thank you. I accept your apology. Tell me your question.

10:49:05

MICHAELMy question is -- I'm really concerned about two things. First of all, the extent to which ordinary, especially ordinary, undecided swing voters base their -- do they base their opinions on voting on these political TV -- I call them smarmy TV campaigns...

10:49:29

REHMOkay.

10:49:30

MICHAEL...(unintelligible) and also on the radio talk show pundits? Do we have any Gallup Organization polls or any man on the street information results about that? And, second, the conservatives who called for, over the '90s, unlimited political donations to any campaign you wish, but the organizations who campaigned for them would have full disclosure. I don't know whether or not these political action groups -- I don't exactly know what they're called -- release out everything about themselves, like their founders and their financiers.

10:50:06

REHMAll right. Trevor.

10:50:08

POTTERWell, the disclosure side is another area here. As, you know, the Supreme Court, 8-1, said disclosure is fully constitutional, including disclosure of issue advocacy that mentions a candidate. And the problem is that the law is not as broad as what the court said it could be in terms of requiring disclosure. The further problem is the Federal Election Commission has written what, I think, is a very limited regulation here. They're being challenged in court because they are not, in fact, requiring disclosure the law requires.

10:50:46

POTTERSo what we need to do is to push to have full disclosure. Congress looked at that last year. There was a filibuster in the Senate, and it missed by one vote. That was a broader piece of legislation. What I think we need to do after this election is at least go back and fix the disclosure-only side so that we do know, as the Supreme Court presumed we would -- shareholders and citizens alike know where the money is coming from and who's spending it.

10:51:12

REHMWe just got an email from Jeffrey Risner, who is city of Athens, Ohio, councilman in the Second Ward, who says, "The City of Athens, Ohio will pass a resolution to overturn the 2010 Supreme Court decision on Feb. 6, 2012. We will be the first city in Ohio to do so." He's predicting that that's going to be the case, Dave.

10:51:50

LEVINTHALThere is definitely discontent at the local level in some jurisdictions -- at the state level in some jurisdictions. And I think that is an example of what you're seeing in pockets around the country. There may not be a unified effort yet that is robust and strong enough to really push this to the federal level, but, as Bob Edgar talked about before and as that emailer has illustrated, there definitely are sentiments that are coalescing.

10:52:17

REHMJan Baran mentioned President Obama and raising money on the Internet. What about the super PACs and the manner in which they're using the Internet, Dave?

10:52:29

LEVINTHALSo far, as we can see, the biggest of the big super PACs are using big dollar donors, people who are wealthy, who are politically active, who have the funds and who have the will to donate as much money as they are. So the idea of super PACs raising money through the Internet is largely not a factor yet in the presidential race.

10:52:49

10:53:04

SONNYGood morning. Thanks, Diane. I'm a conservative who strongly supports -- or campaign finance reform. And I think super PACs are absolute farce. And building on what your emailer mentioned a few moments ago, I'd like to propose something that I haven't heard mentioned, which is a completely publicly financed campaign system in which every voter is allowed $100 to $200 to allocate to any candidate, local, federal or otherwise and that no money can be spent on behalf of a candidate or a party unless it comes from that fund.

10:53:35

SONNYAnd that would give each voter equal say in terms of their vote and in terms of their money. And it will put candidates back in touch with the constituents who elect them. So I'd like to hear comments on that.

10:53:45

REHMJan Baran.

10:53:47

BARANWell, public financing is something that we've tried, as Trevor mentioned. We had it in our presidential system for some 35, 40 years. The reason it is now in disfavor is that part of public financing is accompanied by spending limits. Somebody who participates as a candidate and is publicly funded, in exchange, has to promise I will not spend more than X or Y amount of money.

10:54:15

BARANAnd what we have discovered is that the public is unable or unwilling to provide as much money to candidates that would be an incentive to take the public money and bump up against the spending limit, particularly when there's independent spending going on.

10:54:32

REHMAll right. And to Tysons Corner, Va., Michael, you're on the air.

10:54:39

MICHAELGood morning, Diane and guests. I have a relevant and an important question. If you have a private, for-profit corporation, it receives either majority or partial funding through taxpayer funds, tax subsidies, be that federal or state, are those private corporations allowed to make contributions these PACs or super PACs? And if so, are they required to disclose those contributions, again, because they are taxpayer-funded corporations?

10:55:20

REHMAll right. Trevor.

10:55:21

POTTERWell, the Obama administration has been talking about requiring disclosure by government contractors of any money that they spend for political purposes, but they have not issued that executive order. And the Republican leadership of Congress has been opposing that. As a matter of underlying law, government contractors are prohibited from making contributions or expenditures. But that is very narrowly defined as the actual corporate entity, that has the government contracting, gets the money.

10:55:53

POTTERSo in a big, multi-level corporation, it may be that a subsidiary may not make it, but the parent can. And that's what often happens.

10:56:02

REHMAll right. I want to ask each of you a question. I would appreciate a brief response. How much of an influence do you think these super PACs are going to have on this election? Jan Baran.

10:56:21

BARANI think they will be part of the debate just as other independent groups in the past, like Swift Boat Veterans and other types of independent groups, were. But, ultimately, the campaigns and the parties are going to have more influence than the independent groups.

10:56:35

REHMDave.

10:56:36

LEVINTHALSuper PACs will certainly have an influence. They already have. It's important, though, to also bring into the debate -- we haven't talked a whole lot about them today -- is non-profit organizations that are politically active. There's a lot of activity that they had in 2010 and expect to see them do so in 2012 as well.

10:56:54

REHMTrevor Potter.

10:56:55

POTTERI actually predict their biggest impact has already occurred in the primaries where you can spend relatively less money and make a big difference, as we saw in Iowa. We will see a lot of spending in the general election. The difference is unlimited individual, unlimited corporate to these groups, which we didn't have before.

10:57:12

REHMTrevor Potter. He's with the Washington law firm of Caplin & Drysdale. Dave Levinthal of Politico, and Jan Baran, head of the election law group at Wiley Rein, thank you all so much. Thanks for listening. I'm Diane Rehm.

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